Judge won't stop Ohio execution by untried drugs

COLUMBUS, Ohio (AP) -- A federal judge on Monday refused to stop the upcoming execution of a condemned Ohio killer facing a never-tried lethal injection process that the inmate's attorneys say will cause him agony and terror.

Judge Gregory Frost's ruling moved Dennis McGuire one step closer to execution by the two-drug method developed after supplies of Ohio's former execution drug dried up. Gov. John Kasich and the Ohio Parole Board have both rejected McGuire's plea for clemency.

The judge said McGuire had failed to present evidence that he would suffer breathing problems alleged by his attorneys -- a phenomenon known as "air hunger" -- and said the risk to McGuire is within constitutional limits.

"The evidence before this court fails to present a substantial risk that McGuire will experience severe pain," Frost said.

Frost, a veteran of Ohio death penalty litigation, acknowledged the novelty of the state's untried method, calling it "an experiment in lethal injection processes."

But until a method violates the Constitution, "The law teaches that Ohio is free to innovate and to evolve its procedures for administering capital punishment," Frost said.

The judge rejected a similar request last year by death row inmate Ronald Phillips, who was set to become the first to die by the new method until Kasich delayed his execution to study the feasibility of Phillips' donating organs to family members.

In the past, other death row inmates have challenged Ohio's lethal drugs on the grounds that they might suffer a severe allergic reaction or were too obese to be put to death humanely.

McGuire, 53, is scheduled to die Thursday for the 1989 rape and fatal stabbing of Joy Stewart in Preble County in western Ohio.

Allen Bohnert, the attorney who argued McGuire's case before Frost, did not immediately comment, saying he planned to confer with the rest of McGuire's legal team.

McGuire also asked the U.S. Supreme Court to delay the execution on the grounds that the jury that sentenced him to die never got to hear the full extent of his chaotic and abusive childhood.

In the lethal injection appeal, McGuire's lawyers had asked Frost to delay the execution while they challenge the proposed two-drug system.

The drug combination won't sedate death row inmate McGuire properly, and he will experience the suffocation-like air hunger syndrome, McGuire's attorneys said in filings earlier this month.

"McGuire will experience the agony and terror of air hunger as he struggles to breathe for five minutes after defendants intravenously inject him with the execution drugs," the inmate's attorneys said in a Jan. 6 court filing.

They also said McGuire exhibits several symptoms of sleep apnea, which could exacerbate the problem.

The state opposed any delay, presenting evidence that disputed the air hunger scenario. They called McGuire's appeal an eleventh-hour request that was years too late.

The U.S. Constitution bars cruel and unusual punishment. But that doesn't mean execution procedures must be entirely comfortable, Thomas Madden, an assistant Ohio attorney general, told Frost on Friday.

"You're not entitled to a pain-free execution," Madden said.

Supplies of Ohio's former execution drug, pentobarbital, dried up as its manufacturer put it off limits for executions.

Ohio's Department of Rehabilitation and Correction plans to use a dose of midazolam, a sedative, combined with hydromorphone, a painkiller, to put McGuire to death.

Other death penalty states are being challenged by supply shortages.

Missouri gave up attempts to use propofol over concerns the move could create a shortage of the popular anesthetic if the European Union, which opposes the death penalty, restricted its export.

In Georgia, the state's attempt to use a non-federally regulated dose of pentobarbital is the subject of a lawsuit.

The combination of drugs Ohio intends to use has never been used in a U.S. execution. They are included in Kentucky's backup execution method, and Florida uses midazolam as part of its three-drug injection process.

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Andrew Welsh-Huggins can be reached on Twitter at https://twitter.com/awhcolumbus